If implemented, Trump’s policy would deny citizenship at birth to an estimated 255,000 babies born annually in the U.S. to illegal immigrants or temporary visa holders, according to the Migration Policy Institute.
Since the case is still in the early stages of litigation, the Supreme Court may not provide a final answer to the citizenship question. However, the arguments and the eventual decision, expected before July, will likely offer insight into the justices’ willingness to consider Trump’s unprecedented interpretation of the Constitution, as well as the growing number of lower-court orders that have halted the administration’s policies nationwide.
Under the 14th Amendment, ratified in 1868, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” For over a century, this text has been interpreted to grant citizenship at birth to all individuals except for children of foreign diplomats, the WSJ reported.
But proponents of Trump’s order have argued that the historical context of the amendment was to grant citizenship to the children of former slaves and that the provision has since been abused by illegal migrants who exploit it to gain a foothold in the U.S. by having a child on American soil.
Trump’s executive order is also based on the argument that illegal immigrants are not “subject to the jurisdiction” of the U.S. for citizenship purposes, meaning their children should not be granted citizenship at birth.
The White House asserts that the citizenship clause was designed to overturn the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which ruled that black people could not be citizens, but did not extend citizenship to foreigners without permanent legal residency.
In 1995, in response to proposed legislation that would eliminate birthright citizenship for children of unauthorized immigrants, the Justice Department advised that such a change would require a constitutional amendment. However, Trump has long speculated about the possibility of restricting birthright citizenship.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said in a 2018 interview. “It’s in the process. It’ll happen, with an executive order.”
Democratic-led states and immigrant advocacy groups filed multiple lawsuits to overturn Trump’s order, and federal judges in Maryland, Massachusetts, and Washington state swiftly blocked it, ruling it likely unconstitutional and forbidding its nationwide implementation.
The Justice Department is currently targeting the broad scope of these injunctions. The administration is urging the Supreme Court to curtail district judges’ authority to issue nationwide injunctions beyond their jurisdictions, arguing that such injunctions have been improperly used in numerous cases to hinder Trump’s agenda.
These nationwide injunctions have faced criticism from both the right and left, depending on which party is in power, the WSJ noted.
The decree eliminating birthright citizenship is just one part of Trump’s broader campaign to expel and deter unauthorized migrants, much of which is currently tied up in litigation. Several of these cases have already made brief appearances before the Supreme Court, the outlet noted further.
